FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND SECURITY AGREEMENT
Exhibit 10.1
FIRST
AMENDMENT TO
AMENDED
AND RESTATED CREDIT AGREEMENT AND SECURITY AGREEMENT
This
First Amendment to Amended and Restated Credit Agreement and Security Agreement
(the “First Amendment”) is made as of the 14th day of March, 2005 by and
among
XXXXX
SHOE COMPANY, INC., a corporation organized under the laws of the State of New
York having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000, as Lead Borrower for the Borrowers, being
said
XXXXX SHOE COMPANY, INC.,
XXXXXX
XXXX ASSOCIATES, INC., a corporation organized under the laws of the State of
Missouri having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000;
XXXXX
GROUP RETAIL, INC., a corporation organized under the laws of the Commonwealth
of Pennsylvania having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000;
XXXXX
SHOE INTERNATIONAL, LLC., a limited liability company organized under the laws
of the State of Delaware having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000; and
XXXXXX
XXXXX & CO., a corporation organized under the laws of the State of Missouri
having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000;
XXXXX
SHOE COMPANY OF CANADA LTD., a Canadian corporation having a place of business
at 0000 Xxxxxxx Xxxx, Xxxxx, Xxxxxxx, Xxxxxx X0X 0X0, as a Loan Party but not as
Borrower;
the
LENDERS party hereto; and
BANK OF
AMERICA, N.A., as Lead Issuing Bank, a national banking association having a
place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000;
and
BANK OF
AMERICA, N.A., as Administrative Agent and Collateral Agent for the Lenders and
the Secured Parties, a national banking association, having an office c/o Fleet
Retail Group, Inc., 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000;
and
LASALLE
BANK NATIONAL ASSOCIATION, as Syndication Agent; and
XXXXX
FARGO FOOTHILL, LLC, as Documentation Agent
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in
consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH
WHEREAS,
the Lead Borrower, the other Borrowers, Xxxxx Canada, the Administrative Agent,
the Collateral Agent, the Lenders, the Lead Issuing Bank, the Syndication Agent,
and the Documentation Agent have entered into an Amended and Restated Credit
Agreement dated as of July 21, 2004 (as amended and in effect, the “Credit
Agreement”); and
WHEREAS,
the Lead Borrower, the other Borrowers and Xxxxx Canada entered into an Amended
and Restated Security Agreement dated as of July 21, 2004 (as amended and in
effect, the “Security Agreement”) with the Collateral Agent; and
WHEREAS,
the Lead Borrower, the other Borrowers, Xxxxx Canada, the Administrative Agent ,
the Collateral Agent, the Lenders, the Lead Issuing Bank, the Syndication Agent,
and the Documentation Agent have agreed to amend certain provisions of the
Credit Agreement and the Security Agreement as set forth herein.
NOW
THEREFORE, it is hereby agreed as follows:
|
1. |
Definitions:
All capitalized terms used herein and not otherwise defined shall have the
same meaning herein as in the Credit Agreement.
|
|
2. |
Amendment
to Article 1.
The provisions of Section 1.1 of the Credit Agreement are hereby amended
as follows: |
|
a. |
The
provisions of Section 1.1 of the Credit Agreement are hereby amended by
adding the following definitions in appropriate alphabetical
order: |
“Earn-Out
Obligations” means
any contingent consideration payable to the seller in connection with a
Permitted Acquisition based on future operating performance of the acquired
Person or assets or other purchase price adjustment or indemnification
obligation payable following the consummation of such Permitted Acquisition
based on criteria set forth in the documentation governing or relating to such
Permitted Acquisition.
2
“Permitted
Consignment” means
an arrangement pursuant to which a Loan Party consigns Inventory to a customer,
provided that (i) such consignment arrangement shall constitute a true
consignment and not a security interest, (ii) the Loan Party shall use
commercially reasonable efforts to undertake all action required under the UCC
to perfect its rights in the Inventory so consigned and the proceeds thereof, in
each instance, as soon as may be reasonably practicable, and (iii) the value of
such Inventory on consignment at any one time shall not exceed
$3,000,000.
|
b. |
The
definition of “Change in Control” is hereby amended by deleting the period
at the end of clause (d) and adding the
following: |
; or (e)
any “change in control” or similar event however defined in any documents
governing Material Indebtedness of any Loan Party.
|
3. |
Amendments
to Article 6.
The provisions of Article 6 of the Credit Agreement are hereby amended as
follows: |
|
a. |
The
provisions of Section 6.1(i) of the Credit Agreement are hereby deleted in
their entirety and the following substituted in their
stead: |
(i)
Unsecured Indebtedness for borrowed money, including, without limitation,
Subordinated Debt, having a maturity after the Maturity Date, provided
that after
giving effect to the incurrence of such unsecured Indebtedness or Subordinated
Debt, the Pro Forma Conditions are satisfied, except that the Pro Forma
Conditions shall not be required to be satisfied with respect to any publicly
issued or privately placed notes, any exchange notes or any rollover notes, in
each case issued to refinance or refund, or in exchange for, any bridge facility
permitted under Section 6.1(k) hereof;
|
b. |
The
provisions of Section 6.1(k) of the Credit Agreement are hereby deleted in
their entirety and the following substituted in their
stead: |
(k)
Unsecured Indebtedness for borrowed money, including, without limitation,
Subordinated Debt (other than Indebtedness described in subsections (i) or (j)
above) having a maturity on or prior to the Maturity Date provided
that (A)
after giving effect to the incurrence thereof and the projected refinancing or
refunding thereof, the Pro Forma Conditions are satisfied, (B) constitutes a
bridge loan pending the consummation of a debt or equity issuance, and (C) the
principal of which will not be repaid (other than (1) from the proceeds of such
debt or equity issuance or from any rollover loans, publicly issued or privately
placed notes, or exchange notes issued in exchange for the bridge loan, or (2)
as permitted pursuant to Section 6.7(b)(i) hereof) until all Obligations have
been paid in full and all Commitments terminated;
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|
c. |
The
provisions of Section 6.1(q) of the Credit Agreement are hereby amended by
adding the words “or a Person who will become a Loan Party” after the
words “a Subsidiary of a Loan Party.” |
|
d. |
The
provisions of Section 6.1 of the Credit Agreement are hereby amended by
relettering clause (r) as clause (s) and adding the following new clause
thereto: |
(r)
Indebtedness consisting of Earn-Out Obligations, but only to the extent that the
contingent consideration relating thereto is paid within thirty (30) days after
the amount due is finally determined; and
|
e. |
The
provisions of Section 6.2 of the Credit Agreement are hereby amended by
deleting the word “and” at the end of clause (e), by substituting “;” for
the period at the end of clause (f) and adding the following new clauses
thereto: |
(g) Liens
existing on assets prior to the acquisition thereof, which are directly or
indirectly acquired in a Permitted Acquisition provided
that (i) such
Liens secure Indebtedness permitted under Section 6.1 hereof or obligations to a
lessor under a lease of Real Estate to a Loan Party, (ii) such Liens are not
created in contemplation of or in connection with such Permitted Acquisition,
(iii) such Liens shall not apply to any other property or assets of a Loan
Party, (iv) such Liens shall secure only the Indebtedness or other obligations
that such Liens secure on the date of the Permitted Acquisition; and (v) such
Liens shall not attach to assets which would be of a type included as Collateral
or in the Borrowing Base, except for non-material Liens acceptable to the
Administrative Agent; and
(h) Liens
on cash and cash equivalents to secure letters of credit permitted pursuant to
Section 6.1(q).
|
f. |
The
provisions of Section 6.5(f) of the Credit Agreement are hereby amended by
adding the following at the end thereof: |
provided
further that, if a
Cash Dominion Event then exists and is continuing, all of such proceeds (and not
only those in excess of $35,000,000) shall be paid to the Administrative Agent
for application to the Obligations;
|
g. |
The
provisions of Section 6.6 of the Credit Agreement are hereby amended as
follows: |
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|
i. |
by
deleting clause (a) in its entirety and substituting the following in its
stead: |
(a) the
ability of any Loan Party to create, incur or permit to exist any Lien upon any
of its property or assets in favor of the Secured Parties,
|
ii. |
by
deleting clause (b) in its entirety and substituting the following in its
stead: |
(b) the
ability of (i) any Loan Party (other than the Lead Borrower) to pay dividends or
other distributions with respect to any shares of its Capital Stock or (ii) any
Loan Party to make or repay loans or advances to any Loan Party or to guarantee
Indebtedness of any Loan Party;
|
h. |
The
provisions of Section 6.7(b) of the Credit Agreement are hereby amended as
follows: |
|
i. |
by
deleting clause (i) in its entirety and substituting the following in its
stead: |
(i)
payment when due (excluding any voluntary prepayments and, unless otherwise
agreed by the Required Lenders, payments due upon a Change in Control) of
principal, interest, fees and expense reimbursements with respect to
Indebtedness permitted under Section 6.1, but only to the extent required under
the terms of the documents evidencing such Indebtedness;
|
ii. |
by
deleting clause (iii) in its entirety and substituting the following in
its stead: |
(iii)
Intentionally Omitted.
|
iii. |
by
deleting clause (iv) in its entirety and substituting the following in its
stead: |
(iv)
refinancings of Indebtedness described in clauses (i) and (ii), above, to the
extent permitted by Section 6.1, including, without limitation, any refinancing
as a result of any rollover loans, publicly issued or privately placed notes or
exchange notes issued in exchange for such Indebtedness, and all fees and
expenses payable in connection with such refinancing.
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|
4. |
Amendments
to Security Agreement.
The second sentence of Section 4.9 of the Security Agreement is hereby
amended in its entirety to read as follows: |
Except as
expressly permitted in the Credit Agreement, none of the Grantors shall make or
permit to be made any trans-fer of the Collat-eral, and each Grantor shall
remain at all times in posses-sion of the Collateral owned by it (other than
Collateral which is in transit or which is the subject of a Permitted
Consignment), except that unless and until an Event of Default shall have
occurred and be continu-ing, the Collateral Agent shall notify the Grantors
thereof in writing and such notice provides that the Grantors shall not sell,
convey, lease, assign, transfer or otherwise dispose of any Collateral (which
notice may be given by telephone if promptly confirmed in writing), the Grantors
may use and dispose of the Collateral in any lawful manner not inconsistent with
the provisions of this Agree-ment, the Credit Agreement or any other Loan
Document.
|
5. |
Conditions
to Effectiveness.
This First Amendment shall not be effective until each of the following
conditions precedent have been fulfilled to the satisfaction of the
Administrative Agent: |
|
a. |
This
First Amendment shall have been duly executed and delivered by the
Borrowers, Xxxxx Canada, the Administrative Agent, the Collateral Agent
and the Required Lenders. The Administrative Agent shall have received a
fully executed copy hereof and of each other document required
hereunder. |
|
b. |
All
action on the part of the Borrowers necessary for the valid execution,
delivery and performance by the Borrowers of this First Amendment shall
have been duly and effectively taken. The Administrative Agent shall have
received from the Borrowers true copies of their respective certificate of
the resolutions authorizing the transactions described herein, each
certified by their secretary or other appropriate officer to be true and
complete. |
|
c. |
The
Borrowers shall have reimbursed the Administrative Agent for all
reasonable out-of-pocket expenses incurred in connection herewith,
including, without limitation, reasonable attorneys’
fees. |
|
d. |
No
Default or Event of Default shall have occurred and be
continuing. |
|
e. |
The
Borrowers shall have provided such additional instruments, documents, and
opinions of counsel to the Administrative Agent as the Administrative
Agent and their counsel may have reasonably
requested. |
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In the
event that the foregoing conditions are not satisfied on or before March 31,
2005, then this First Amendment shall be null and void and of no
effect.
|
6. |
Miscellaneous. |
|
a. |
Except
as provided herein, all terms and conditions of the Credit Agreement and
the other Loan Documents remain in full force and effect. The Borrowers
each hereby ratify, confirm, and reaffirm all of the representations,
warranties and covenants therein contained. |
|
b. |
This
First Amendment may be executed in several counterparts and by each party
on a separate counterpart, each of which when so executed and delivered,
each shall be an original, and all of which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page hereto
by telecopy shall be effective as delivery of a manually executed
counterpart hereof. |
|
c. |
This
First Amendment expresses the entire understanding of the parties with
respect to the matters set forth herein and supersedes all prior
discussions or negotiations hereon. |
|
d. |
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IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
executed and their seals to be hereto affixed as the date first above written.
“The
Borrowers”
XXXXX
SHOE COMPANY, INC.
XXXXXX
XXXX ASSOCIATES, INC.
XXXXX
GROUP RETAIL, INC.
XXXXXX
XXXXX & CO.
as to
each of the foregoing
By_________________________
Name:
Xxxxxx X. Xxxxx
Title:
Senior Vice President and
Chief
Financial Officer
XXXXX
SHOE INTERNATIONAL, LLC
By; Xxxxx
Shoe Company, Inc., Sole Member
By_________________________
Name:
Xxxxxx X. Xxxxx
Title:
Senior Vice President and
Chief
Financial Officer
“Non-Borrower
Loan Party”
XXXXX
SHOE COMPANY OF CANADA LTD
By
__________________________
Name:
Xxxxxx X. Xxxxx
Title:
Senior Vice President and
Chief
Financial Officer
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BANK OF
AMERICA, N.A., as
Administrative
Agent, Collateral Agent,
Lead
Issuing Bank and Lender
By_________________________________
Print
Name:__________________________
Title:_______________________________
LASALLE
BANK NATIONAL ASSOCIATION
By_________________________________
Print
Name:__________________________
Title:_______________________________
XXXXX
FARGO FOOTHILL, LLC
By_________________________________
Print
Name:__________________________
Title:_______________________________
CONGRESS
FINANCIAL CORPORATION (CENTRAL)
By_________________________________
Print
Name:__________________________
Title:_______________________________
GMAC
COMMERCIAL FINANCE LLC
By_________________________________
Print
Name:__________________________
Title:_______________________________
9
THE CIT
GROUP/BUSINESS CREDIT, INC.
By_________________________________
Print
Name:__________________________
Title:_______________________________
NATIONAL
CITY BUSINESS CREDIT, INC.
By_________________________________
Print
Name:__________________________
Title:_______________________________
PNC BANK,
NATIONAL ASSOCIATION
By_________________________________
Print
Name:__________________________
Title:_______________________________
TRANSAMERICA
BUSINESS CAPITAL CORPORATION
By_________________________________
Print
Name:__________________________
Title:_______________________________
AMSOUTH
BANK
By_________________________________
Print
Name:__________________________
Title:_______________________________
10
SUN TRUST
BANK
By_________________________________
Print
Name:__________________________
Title:_______________________________
XXXXXXX
BUSINESS CREDIT CORPORATION
By_________________________________
Print
Name:__________________________
Title:_______________________________
SIEMENS
FINANCIAL SERVICES, INC.
By_________________________________
Print
Name:__________________________
Title:_______________________________
FIRST
BANK
By_________________________________
Print
Name:__________________________
Title:_______________________________
RZB
FINANCE LLC
By_________________________________
Print
Name:__________________________
Title:_______________________________
00
XXX
XXXXXXXX & XXXXXXX XX XXX
XXXX XX XXXXXXX
By_________________________________
Print
Name:__________________________
Title:_______________________________
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